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Access to the Marital Home During Separation – Who Gets to Stay in the House?

Access to the Marital Home During Separation – Who Gets to Stay in the House?

Disclaimer: This is general information. For specific legal advice, please get in touch. 

You usually want to physically separate before you start the process for property settlement and court orders for your divorce, but who is legally entitled to the marital home during separation?  It is not as simple as being able to “kick them out.” What if either you or your spouse refuse to leave the home? What can you do if you can’t agree on who moves out? 

What can you do if the property is in your name? What if the property has a joint ownership?

Family law has different rules to commercial and property law. Here, possession and ownership do not have the same weight in determining who is able to stay in the home. Both you and your spouse are equally entitled to live in the marital home during separation – ownership of the property is not relevant. Anyone can also leave the marital home during separation but no one can be forced to. This means you cannot make your spouse leave and then change the locks. Of course, this is handled differently in cases of domestic violence.  

What are your rights if you leave the family home?

If you choose to leave the family home, you can still claim part of the property when you have a property settlement for your divorce. Make sure you take any important personal belongings that you legally own (individually or together) in case there are issues during your property settlement. You also still have the right to return to the home any time during the separation, provided there is no court order against you. However, it can create conflict if you turn up unannounced and can even lead to the other party applying for a domestic violence order.   

You do not lose your right to the home or your possessions if you move out.  

You should also consider whether it is in your children’s best interests to move them away or not. Seek more information and legal advice on coming to an agreement about your children, such as a consent order or parenting plan. 

What can you do if your spouse won't leave?

If you can’t come to an agreement, you can’t force your spouse out of the home. While this may mean a lot of stress for you, it protects both your rights to property. It is also important that if you have children, they can still access the home for their belongings – this can make the process easier for them, too. Living under the same roof doesn’t mean you separated though. Depending on your circumstances, the court can still decide that you are separated from a certain point. 

However, in special circumstances, you may force your spouse to leave through applying for an exclusive occupation order. 

Refusal to leave marital home after separation


What if there is provable domestic violence?

Firstly, you must call the police if you or your children are in danger. In cases where there is domestic violence, you may seek a domestic violence protection order. A protection order is legally enforceable. It can compel the person it was made against to leave and stay away from the family home. Similarly, you can apply for an exclusive occupancy order during your separation.  

What is an exclusive occupancy order?

An exclusive occupancy order is an interim order. This means that it will be in place until it is changed or until the final property settlement, which can take a lengthy amount of time. It is a form of injunction found under Section 114 of the Family Law Act, which forces someone out of the marital home. This order does not affect your property settlement and is not a final determination of who owns the house. 

How can an exclusive occupancy order be granted?

The court must deem an exclusive occupancy order to be proper in your situation. This requires that you, the person applying, have a greater need to stay in the house than your ex-spouse. The court considers two things: 

  • Should the home be occupied by one party? And if so;  
  • Who should be forced out of the property? 

The court will consider a variety of factors such as: 

  • the financial capabilities of either party  
  • the best interests and needs of any children 
  • the reasonableness and justness of making the order 
  • the affordability and availability of accommodation 
  • the conduct of the parties 
  • evidence of abuse or threats of abuse 

For example, the court may decide that the primary carer stay in the home as it may be best for the children. 

Exclusive occupancy is more often granted in cases of abuse and seeks to protect you and your children. It may be difficult to get the order without risk of harm. 

How do you make an application for exclusive use of the marital home?

You may apply to the court through the Commonwealth Courts Portal for interim orders.  You need to make an “initiating application” or an “application in a proceeding” if you already have a case filed in the court. You are required to sign an affidavit which is a document that sets out true facts as a form of evidence to the court. This is where you would provide any evidence of your provable domestic violence. 

What next?

Drafting an affidavit may not be simple so seek your legal advice with Divorce Hub. We can assist you in finding the best course of action. 

The information in this article is general information only.  It does not constitute legal advice or financial advice.


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